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2000 - Rules and Regulations
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PART 309—DISCLOSURE OF INFORMATION
Sec.
309.1
Purpose and scope.
309.2
Definitions.
309.3
Federal Register publication.
309.4
Publicly available records.
309.5
Procedures for requesting records.
309.6
Disclosure of exempt records.
309.7
Service of process.
AUTHORITY: 5 U.S.C. 552;
12 U.S.C. 1819 "Seventh"
and "Tenth".
SOURCE: The provisions of this Part 309 appear at Fed. Reg. 61465,
November 30, 1995, effective January 2, 1996 except as otherwise
noted.
§ 309.1 Purpose and scope.
This part sets forth the basic policies of the Federal Deposit
Insurance Corporation regarding information it maintains and the
procedures for obtaining access to such information. Section 309.2 sets
forth definitions applicable to this part 309. Section 309.3 describes
the types of information and documents typically published in the
Federal Register. Section 309.4 explains how to access
public records maintained on the Federal
Deposit Insurance Corporation's World Wide Web page and in the
Federal Deposit Insurance Corporation's Public Information Center or
"PIC", and describes the categories of records generally found
there. Section 309.5 implements the Freedom of Information Act (5
U.S.C. 552). Section 309.6 authorizes the discretionary disclosure of
exempt records under certain limited circumstances. Section 309.7
outlines procedures for serving a subpoena or other legal process to
obtain information maintained by the FDIC.
[Codified to 12 C.F.R. § 309.1]
[Section 309.1 amended at 63 Fed. Reg. 16404, April 3,
1998, effective May 4, 1998]
§ 309.2 Definitions.
For purposes of this part:
(a) The term depository institution, as used in
§ 309.6, includes depository institutions that have applied to the
Corporation for federal deposit insurance, closed depository
institutions, presently operating federally insured depository
institutions, foreign banks, branches of foreign banks, and all
affiliates of any of the foregoing.
(b) The terms Corporation or FDIC mean the Federal
Deposit Insurance Corporation.
(c) The words disclose or disclosure, as used in
§ 309.6, mean to give access to a record, whether by producing the
written record or by oral discussion of its contents. Where the
Corporation employee authorized to release Corporation documents makes
a determination that furnishing copies of the documents is necessary,
the words disclose or disclosure include the furnishing of
copies of documents or records. In addition, disclose or
disclosure as used in § 309.6 is synonymous with the term
transfer as used in the Right to Financial Privacy Act of
1978 (12 U.S.C. 3401 et
seq.).
(d) The term examination includes, but is not limited
to, formal and informal investigations of irregularities involving
suspected violations of federal or state civil or criminal laws, or
unsafe and unsound practices as well as such other investigations as
may be conducted pursuant to law.
(e) The term record includes records, files, documents,
reports, correspondence, books, and accounts, or any portion thereof,
in any form the FDIC regularly maintains them.
(f) The term report of examination includes, but is not
limited to, examination reports resulting from examinations of
depository institutions conducted jointly by Corporation examiners and
state banking authority examiners or other federal financial
institution examiners, as well as reports resulting from examinations
conducted solely by Corporation examiners. The term also includes
compliance examination records.
{{10-31-07 p.2168}}
(g) The term customer financial records, as used in
§ 309.6, means an original of, a copy of, or information known to
have been derived from, any record held by a depository institution
pertaining to a customer's relationship with the depository institution
but does not include any record that contains information not
identified with or identifiable as being derived from the financial
records of a particular customer. The term customer as used
in § 309.6 refers to individuals or partnerships of five or fewer
persons.
(h) The term Director of the Division having primary
authority includes Deputies to the Chairman and directors of FDIC
Divisions and Offices that create, maintain custody, or otherwise have
primary responsibility for the handling of FDIC records or information.
[Codified to 12 C.F.R. § 309.2]
[Section 309.2 amended at 63 Fed. Reg. 16404, April 3,
1998, effective May 4, 1998]
§ 309.3 Federal Register publication.
The FDIC publishes the following information in the Federal Register
for the guidance of the public:
(a) Descriptions of its central and field organization and the
established places at which, the officers from whom, and the methods
whereby, the public may secure information, make submittals or
requests, or obtain decisions;
(b) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports or examinations;
(d) Substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpretations
of general applicability formulated and adopted by the FDIC;
(e) Every amendment, revision or repeal of the foregoing; and
(f) General notices of proposed rulemaking.
[Codified to 12 C.F.R. § 309.3]
§ 309.4 Publicly available records.
(a) Records available on the FDIC's World Wide Web
page--(1) Discretionary release of documents. The FDIC
encourages the public to explore the wealth of resources available on
the FDIC's World Wide Web page, located at:
http://www.fdic.gov. The FDIC has
elected to publish a broad range of materials on its World Wide Web
page, including consumer guides; financial and statistical information
of interest to the banking industry; and information concerning the
FDIC's responsibilities and structure.
(2) Documents required to be made available via computer
telecommunications. (i) The following types of documents created
on or after November 1, 1996, and required to be made available through
computer telecommunications, may be found on the FDIC's World Wide Web
page located at: http://www.fdic.gov:
(A) Final opinions, including concurring and dissenting opinions,
as well as final orders and written agreements, made in the
adjudication of cases;
(B) Statements of policy and interpretations adopted by the Board
of Directors that are not published in the Federal Register;
(C) Administrative staff manuals and instructions to staff that
affect the public;
(D) Copies of all records released to any person under § 309.5
that, because of the nature of their subject matter, the FDIC has
determined are likely to be the subject of subsequent requests;
(E) A general index of the records referred to in paragraph
(a)(2)(i)(D) of this section.
{{12-31-02 p.2169}}
(ii) To the extent permitted by law, the FDIC may delete
identifying details when it makes available or publishes a final
opinion, final order, statement of policy, interpretation or staff
manual or instruction. If redaction is necessary, the FDIC will, to the
extent technically feasible, indicate the amount of material deleted at
the place in the record where such deletion is made unless that
indication in and of itself will jeopardize the purpose for the
redaction.
(b) Public Information Center. The FDIC maintains a
Public Information Center or "PIC" that contains
Corporate records that the Freedom of Information Act requires be made
available for regular inspection and copying, as well as any records or
information the FDIC, in its discretion, has regularly made available
to the public. The PIC has extensive materials of interest to the
public, including many Reports, Summaries and Manuals used or published
by the Corporation that are available for inspection and copying. The
PIC is open from 9:00 AM to 5:00 PM, Monday through Friday, excepting
federal holidays. It is located at 801 17th Street, N.W., Washington,
D.C. 20006. The PIC may be reached during business hours by calling
(800) 276--6003.
(c) Applicable fees. (i) If applicable, fees for
furnishing records under this section are as set forth in § 309.5(f)
except that all categories of requesters shall be charged duplication
costs.
(ii) Information on the FDIC's World Wide Web page is available
to the public without charge. If, however, information available on the
FDIC's World Wide Web page is provided pursuant to a Freedom of
Information Act request processed under § 309.5, then fees apply and
will be assessed pursuant to § 309.5(f).
[Codified to 12 C.F.R. § 309.4]
[Section 309.4 amended at 63 Fed. Reg. 16404, April 3,
1998, effective May 4, 1998]
§ 309.5 Procedures for requesting records.
(a) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on
behalf of a requester who seeks records for a use or purpose that
furthers the commercial, trade, or profit interests of the requester or
the person on whose behalf the request is made. In determining whether
a request falls within this category, the FDIC will determine the use
to which a requester will put the records requested and seek additional
information as it deems necessary.
(2) Direct costs means those expenditures the FDIC
actually incurs in searching for, duplicating, and, in the case of
commercial requesters, reviewing records in response to a request for
records.
(3) Duplication means the process of making a copy of
a record necessary to respond to a request for records or for
inspection of original records that contain exempt material or that
cannot otherwise be directly inspected. Such copies can take the form
of paper copy, microfilm, audiovisual records, or machine readable
records (e.g., magnetic tape or computer disk).
(4) Educational institution means a preschool, a
public or private elementary or secondary school, an institution of
undergraduate or graduate higher education, an institution of
professional education, and an institution of vocational education,
which operates a program or programs of scholarly research.
(5) Noncommercial scientific institution means an
institution that is not operated on a commercial basis as that term is
defined in paragraph (a)(1) of this section, and which is operated
solely for the purpose of conducting scientific research, the results
of which are not intended to promote any particular product or
industry.
(6) Representative of the news media means any person
primarily engaged in gathering news for, or a free-lance journalist who
can demonstrate a reasonable expectation of having his or her work
product published or broadcast by, an entity that is organized and
operated to publish or broadcast news to the public. The term news
means information that is about current events or that would be of
current interest to the general public.
{{12-31-02 p.2170}}
(7) Review means the process of examining records
located in response to a request for records to determine whether any
portion of any record is permitted to be withheld as exempt
information. It includes processing any record for disclosure, e.g.,
doing all that is necessary to excise them or otherwise prepare them
for release.
(8) Search includes all time spent looking for
material that is responsive to a request, including page-by-page or
line-by-line identification of material within records. Searches may be
done manually and/or by computer using existing programming.
(b) Making a request for records. (1) The request shall
be submitted in writing to the Freedom of Information Act/Privacy Act
Group ("FOIA/PA Group"), Legal Division.
(i) By completing the online request form located on the FDIC's
World Wide Web page, found at:
http://www.fdic.gov;
(ii) By facsimile clearly marked Freedom of Information Act
Request to the FOIA/PA Group: (202) 736--0547; or
(iii) By sending a letter to: Legal Division, FDIC, ATTN: FOIA/PA
Group, 550 17th Street, N.W., Washington, D.C. 20429.
(2) The request shall contain the following information:
(i) The name and address of the requester, an electronic mail
address, if available, and the telephone number at which the requester
may be reached during normal business hours;
(ii) Whether the requester is an educational institution,
noncommercial scientific institution, or news media representative;
(iii) A statement agreeing to pay the applicable fees, or a
statement identifying a maximum fee that is acceptable to the
requester, or a request for a waiver or reduction of fees that
satisfies paragraph (f)(1)(x) of this section; and
(iv) The preferred form and format of any responsive information
requested, if other than paper copies.
(3) A request for identifiable records shall reasonably describe
the records in a way that enables the FDIC's staff to identify and
produce the records with reasonable effort and without unduly burdening
or significantly interfering with any of the FDIC's operations.
(c) Defective requests. The FDIC need not accept or
process a request that does not reasonably describe the records
requested or that does not otherwise comply with the requirements of
this part. The FDIC may return a defective request, specifying the
deficiency. The requester may submit a corrected request, which will be
treated as a new request.
(d) Processing requests.--(1) Receipt of
requests. Upon receipt of any request that satisfies paragraph (b)
of this section, the FOIA/PA Group, Legal Division shall assign the
request to the appropriate processing track pursuant to this section.
The date of receipt for any request, including one that is addressed
incorrectly or that is referred by another agency, is the date the
FOIA/PA Group actually receives the request.
(2) Multitrack processing. (i) The FDIC provides
different levels of processing for categories of requests under this
part. Requests for records that are readily identifiable by the FOIA/PA
Group, and that have already been cleared for public release may
qualify for fast-track processing. All other requests shall be handled
under normal processing procedures, unless expedited processing has
been granted pursuant to paragraph (d)(3) of this section.
(ii) The FDIC will make the determination whether a request
qualifies for fast-track processing. A requester may contact the
FOIA/PA Group to learn whether a particular request has been assigned
to fast-track processing. If the request has not qualified for
fast-track processing, the requester will be given an opportunity to
refine the request in order to qualify for fast-track processing.
Changes made to requests to obtain faster processing must be in
writing.
(3) Expedited processing. (i) Where a person
requesting expedited access to records has demonstrated a compelling
need for the records, or where the FDIC has determined to expedite the
response, the FDIC shall process the request as soon as practicable. To
show a
{{4-30-98 p.2171}}compelling need for expedited
processing, the requester shall provide a statement demonstrating that:
(A) The failure to obtain the records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(B) The requester can establish that they are primarily engaged
in information dissemination as their main professional occupation or
activity, and there is urgency to inform the public of the government
activity involved in the request; and
(C) The requester's statement must be certified to be true and
correct to the best of the person's knowledge and belief and explain
in detail the basis for requesting expedited processing.
(ii) The formality of the certification required to obtain
expedited treatment may be waived by the FDIC as a matter of
administrative discretion.
(4) A requester seeking expedited processing will be notified
whether expedited processing has been granted within ten (10) working
days of the receipt of the request. If the request for expedited
processing is denied, the requester may file an appeal pursuant to the
procedures set forth in paragraph (h) of this section, and the FDIC
shall respond to the appeal within ten (10) working days after receipt
of the appeal.
(5) Priority of responses. Consistent with sound
administrative process the FDIC processes requests in the order they
are received in the separate processing tracks. However, in the
agency's discretion, or upon a court order in a matter to which the
FDIC is a party, a particular request may be processed out of turn.
(6) Notification. (i) The time for response to
requests will be twenty (20) working days except:
(A) In the case of expedited treatment under paragraph (d)(3) of
this section;
(B) Where the running of such time is suspended for the
calculation of a cost estimate for the requester if the FDIC determines
that the processing of the request may exceed the requester's maximum
fee provision or if the charges are likely to exceed $250 as provided
for in paragraph (f)(1)(v) of this section;
(C) Where the running of such time is suspended for the payment
of fees pursuant to the paragraphs (d)(6)(i)(B) and (f)(1) of this
section; or
(D) In unusual circumstances, as defined in
5 U.S.C. 552(a)(6)(B) and
further described in paragraph (d)(6)(iii) of this section.
(ii) In unusual circumstances as referred to in paragraph
(d)(6)(i)(D) of this section, the time limit may be extended for a
period of:
(A) Ten (10) working days as provided by written notice to the
requester, setting forth the reasons for the extension and the date on
which a determination is expected to be dispatched; or
(B) Such alternative time period as agreed to by the requester or
as reasonably determined by the FDIC when the FDIC notifies the
requester that the request cannot be processed in the specified time
limit.
(iii) Unusual circumstances may arise when:
(A) The records are in facilities, such as field offices or
storage centers, that are not located at the FDIC's Washington office;
(B) The records requested are voluminous or are not in close
proximity to one another; or
(C) There is a need to consult with another agency or among two
or more components of the FDIC having a substantial interest in the
determination.
(7) Response to request. In response to a request that
satisfies the requirements of paragraph (b) of this section, a search
shall be conducted of records maintained by the FDIC in existence on
the date of receipt of the request, and a review made of any responsive
information located. The FDIC shall notify the requester of:
(i) The FDIC's determination of the request;
(ii) The reasons for the determination;
(iii) If the response is a denial of an initial request or if any
information is withheld, the FDIC will advise the requester in
writing:
{{4-30-98 p.2172}}
(A) If the denial is in part or in whole;
(B) The name and title of each person responsible for the denial
(when other than the person signing the notification);
(C) The exemptions relied on for the denial; and
(D) The right of the requester to appeal the denial to the
FDIC's General Counsel within 30 business days following receipt of
the notification, as specified in paragraph (h) of this section.
(e) Providing responsive records. (1) Copies of
requested records shall be sent to the requester by regular U.S. mail
to the address indicated in the request, unless the requester elects to
take delivery of the documents at the FDIC or makes other acceptable
arrangements, or the FDIC deems it appropriate to send the documents by
another means.
(2) The FDIC shall provide a copy of the record in any form or
format requested if the record is readily reproducible by the FDIC in
that form or format, but the FDIC need not provide more than one copy
of any record to a requester.
(3) By arrangement with the requester, the FDIC may elect to send
the responsive records electronically if a substantial portion of the
request is in electronic format. If the information requested is made
pursuant to the Privacy Act of 1974, 5
U.S.C. 552a, it will not be sent by electronic means unless
reasonable security measures can be provided.
(f) Fees--(1) General rules. (i) Persons
requesting records of the FDIC shall be charged for the direct costs of
search, duplication, and review as set forth in paragraphs (f)(2) and
(f)(3) of this section, unless such costs are less than the FDIC's
cost of processing the requester's remittance.
(ii) Requesters will be charged for search and review costs even
if responsive records are not located or, if located, are determined to
be exempt from disclosure.
(iii) Multiple requests seeking similar or related records from
the same requester or group of requesters will be aggregated for the
purposes of this section.
(iv) If the FDIC determines that the estimated costs of search,
duplication, or review of requested records will exceed the dollar
amount specified in the request, or if no dollar amount is specified,
the FDIC will advise the requester of the estimated costs (if greater
than the FDIC's cost of processing the requester's remittance). The
requester must agree in writing to pay the costs of search,
duplication, and review prior to the FDIC initiating any records
search.
(v) If the FDIC estimates that its search, duplication, and
review costs will exceed $250.00, the requester must pay an amount
equal to 20 percent of the estimated costs prior to the FDIC initiating
any records search.
(vi) The FDIC shall ordinarily collect all applicable fees under
the final invoice before releasing copies of requested records to the
requester.
(vii) The FDIC may require any requester who has previously
failed to pay the charges under this section within 30 calendar days of
mailing of the invoice to pay in advance the total estimated costs of
search, duplication, and review. The FDIC may also require a requester
who has any charges outstanding in excess of 30 calendar days following
mailing of the invoice to pay the full amount due, or demonstrate that
the fee has been paid in full, prior to the FDIC initiating any
additional records search.
(viii) The FDIC may begin assessing interest charges on unpaid
bills on the 31st day following the day on which the invoice was sent.
Interest will be at the rate prescribed in section 3717 of title 31 of
the United States Code and will accrue from the date of the invoice.
(ix) The time limit for the FDIC to respond to a request will not
begin to run until the FDIC has received the requester's written
agreement under paragraph (f)(1)(iv) of this section, and advance
payment under paragraph (f)(1)(v) or (vii) of this section, or payment
of outstanding charges under paragraph (f)(1)(vii) or (viii) of this
section.
(x) As part of the initial request, a requester may ask that the
FDIC waive or reduce fees if disclosure of the records is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is
not primarily in the commercial interest of the requester.
Determinations
{{12-31-02 p.2173}}as to a waiver or reduction of
fees will be made by the FOIA/PA Group, Legal Division (or designee)
and the requester will be notified in writing of his/her determination.
A determination not to grant a request for a waiver or reduction of
fees under this paragraph may be appealed to the FDIC's General
Counsel (or designee) pursuant to the procedure set forth in paragraph
(h) of this section.
(2) Chargeable fees by category of requester.
(i) Commercial use requesters shall be charged search,
duplication and review costs.
(ii) Educational institutions, non-commercial scientific
institutions and news media representatives shall be charged
duplication costs, except for the first 100 pages.
(iii) Requesters not described in paragraph (f)(2)(i) or (ii) of
this section shall be charged the full reasonable direct cost of search
and duplication, except for the first two hours of search time and
first 100 pages of duplication.
(3) Fee schedule. The dollar amount of fees which the
FDIC may charge to records requesters will be established by the Chief
Financial Officer of the FDIC (or designee). The FDIC may charge fees
that recoup the full allowable direct costs it incurs. Fees are subject
to change as costs change.
(i) Manual searches for records. The FDIC will charge
for manual searches for records at the basic rate of pay of the
employee making the search plus 16 percent to cover employee benefit
costs. Where a single class of personnel (e.g., all clerical, all
professional, or all executive) is used exclusively, the FDIC, at its
discretion, may establish and charge an average rate for the range of
grades typically involved.
(ii) Computer searches for records. The fee for
searches of computerized records is the actual direct cost of the
search, including computer time, computer runs, and the operator's
time apportioned to the search. The fee for a computer printout is the
actual cost. The fees for computer supplies are the actual costs. The
FDIC may, at its discretion, establish and charge a fee for computer
searches based upon a reasonable FDIC-wide average rate for central
processing unit operating costs and the operator's basic rate of pay
plus 16 percent to cover employee benefit costs.
(iii) Duplication of records. (A) The per-page fee
for paper copy reproduction of documents is the average FDIC-wide cost
based upon the reasonable direct costs of making such copies.
(B) For other methods of reproduction or duplication, the FDIC
will charge the actual direct costs of reproducing or duplicating the
documents.
(iv) Review of records. The FDIC will charge
commercial use requesters for the review of records at the time of
processing the initial request to determine whether they are exempt
from mandatory disclosure at the basic rate of pay of the employee
making the search plus 16 percent to cover employee benefit costs.
Where a single class of personnel (e.g., all clerical, all
professional, or all executive) is used exclusively, the FDIC, at its
discretion, may establish and charge an average rate for the range of
grades typically involved. The FDIC will not charge at the
administrative appeal level for review of an exemption already applied.
When records or portions of records are withheld in full under an
exemption which is subsequently determined not to apply, the FDIC may
charge for a subsequent review to determine the applicability of other
exemptions not previously considered.
(v) Other services. Complying with requests for
special services, other than a readily produced electronic form or
format, is at the FDIC's discretion. The FDIC may recover the full
costs of providing such services to the requester.
(4) Publication of fee schedule and effective date of
changes. (i) The fee schedule is made available on the FDIC's
World Wide Web page, found at
http://www.fdic.gov.
(ii) The fee schedule will be set forth in the "Notice of
Federal Deposit Insurance Corporation Records Fees" issued in
December of each year or in such "Interim Notice of Federal Deposit
Insurance Corporation Records Fees" as may be issued. Copies of such
notices may be obtained at no charge from the FOIA/PA Group, Legal
Division, 550 17th Street N.W., Washington, D.C. 20429, and are
available on the FDIC's World Wide Web page as noted in paragraph
(f)(4)(i) of this section.
{{12-31-02 p.2174}}
(iii) The fees implemented in the December or Interim Notice will
be effective 30 days after issuance.
(5) Use of contractors. The FDIC may contract with
independent contractors to locate, reproduce, and/or disseminate
records; provided, however, that the FDIC has determined that the
ultimate cost to the requester will be no greater than it would be if
the FDIC performed these tasks itself. In no case will the FDIC
contract out responsibilities which the Freedom of Information Act
(FOIA) (5 U.S.C. 552) provides
that the FDIC alone may discharge, such as determining the
applicability of an exemption or whether to waive or reduce fees.
(g) Exempt information. A request for records may be
denied if the requested record contains information which falls into
one or more of the following
categories. 1
If the requested record contains both exempt and nonexempt information,
the nonexempt portions which may reasonably be segregated from the
exempt portions will be released to the requester. If redaction is
necessary, the FDIC will, to the extent technically feasible, indicate
the amount of material deleted at the place in the record where such
deletion is made unless that indication in and of itself will
jeopardize the purpose for the redaction. The categories of exempt
records are as follows:
(1) Records that are specifically authorized under criteria
established by an Executive Order to be kept secret in the interest of
national defense or foreign policy and are in fact properly classified
pursuant to such Executive Order;
(2) Records related solely to the internal personnel rules and
practices of the FDIC;
(3) Records specifically exempted from disclosure by statute,
provided that such statute:
(i) Requires that the matters be withheld from the public in such
a manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information
obtained from a person that is privileged or confidential;
(5) Interagency or intra-agency memoranda or letters that would
not be available by law to a private party in litigation with the FDIC;
(6) Personnel, medical, and similar files (including financial
files) the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy;
(7) Records compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a state, local, or foreign agency or
authority or any private institution which furnished records on a
confidential basis;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or
physical safety of any individual;
(8) Records that are contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of the FDIC or any agency responsible for the regulation or
supervision of financial institutions; or
{{2-29-08 p.2175}}
(9) geological and geophysical information and data, including
maps, concerning wells.
(h) Appeals. (1) Appeals should be addressed to the
FOIA/PA Group, Legal Division, FDIC, 550 17th Street, NW, Washington,
D.C. 20429.
(2) A person whose initial request for records under this
section, or whose request for a waiver of fees under paragraph
(f)(1)(x) of this section, has been denied, either in part or in whole,
has the right to appeal the denial to the FDIC's General Counsel (or
designee) within 30 business days after receipt of notification of the
denial. Appeals of denials of initial requests or for a waiver of fees
must be in writing and include any additional information relevant to
consideration of the appeal.
(3) Except in the case of an appeal for expedited treatment under
paragraph (d)(3) of this section, the FDIC will notify the appellant in
writing within 20 business days after receipt of the appeal and will
state:
(i) Whether it is granted or denied in whole or in part;
(ii) The name and title of each person responsible for the denial
(if other than the person signing the notification);
(iii) The exemptions relied upon for the denial in the case of
initial requests for records; and
(iv) The right to judicial review of the denial under the FOIA.
(4) If a requester is appealing for denial of expedited
treatment, the FDIC will notify the appellant within 10 business days
after receipt of the appeal of the FDIC's disposition.
(5) Complete payment of any outstanding fee invoice will be
required before an appeal is processed.
(i) Records of another agency. If a requested record is
the property of another federal agency or department, and that agency
or department, either in writing or by regulation, expressly retains
ownership of such record, upon receipt of a request for the record the
FDIC will promptly inform the requester of this ownership and
immediately shall forward the request to the proprietary agency or
department either for processing in accordance with the latter's
regulations or for guidance with respect to disposition.
[Codified to 12 C.F.R. § 309.5]
[Section 309.5 amended at 63 Fed. Reg. 16404, April 3,
1998, effective May 4, 1998; 67 Fed. Reg. 71071, November 29,
2002]
§ 309.6 Disclosure of exempt records.
(a) Disclosure prohibited. Except as provided in
paragraph (b) of this section or by
12 CFR part
310, 2
no person shall disclose or permit the disclosure of any exempt
records, or information contained therein, to any persons other than
those officers, directors, employees, or agents of the Corporation who
have a need for such records in the performance of their official
duties. In any instance in which any person has possession, custody or
control of FDIC exempt records or information contained therein, all
copies of such records shall remain the property of the Corporation and
under no circumstances shall any person, entity or agency disclose or
make public in any manner the exempt records or information without
written authorization from the Director of the Corporation's Division
having primary authority over the records or information as provided in
this section.
(b) Disclosure authorized. Exempt records or
information of the Corporation may be disclosed only in accordance with
the conditions and requirements set forth in this paragraph (b).
Requests for discretionary disclosure of exempt records or information
pursuant to this paragraph (b) may be submitted directly to the
Division having primary authority over the exempt records or
information or to the FOIA/PA Group for forwarding to the appropriate
Division having primary authority over the records sought. Such
administrative request must clearly state that it seeks discretionary
disclosure of exempt records, clearly identify the records sought,
provide sufficient information for the Corporation to evaluate whether
there is good cause for disclosure, and meet all other conditions set
forth in paragraph (b)(1) through (10) of this section. Information
regarding the appropriate FDIC Division having primary authority over a
particular record or records
{{2-29-08 p.2176}}may be obtained from the FOIA/PA
Group. Authority to disclose or authorize disclosure of exempt records
of the Corporation is delegated as follows:
(1) Disclosure to depository institutions. The
Director of the Corporation's Division having primary authority over
the exempt records, or designee, may disclose to any director or
authorized officer, employee or agent of any depository institution,
information contained in, or copies of, exempt records pertaining to
that depository institution.
(2) Disclosure to state banking agencies. The
Director of the Corporation's Division having primary authority over
the exempt records, or designee, may in his or her discretion and for
good cause, disclose to any authorized officer or employee of any state
banking or securities department or agency, copies of any exempt
records to the extent the records pertain to a state-chartered
depository institution supervised by the agency or authority, or where
the exempt records are requested in writing for a legitimate depository
instiution supervisory or regulatory purpose.
(3) Disclosure to federal financial institutions
supervisory agencies and certain other agencies. The Director of
the Corporation's Division having primary authority over the exempt
records, or designee, may in his or her discretion and for good cause,
disclose to any authorized officer or employee of any federal financial
institution supervisory agency including the Comptroller of the
Currency, the Board of Governors of the Federal Reserve System, the
Office of Thrift Supervision, the Securities and Exchange Commission,
the National Credit Union Administration, or any other agency included
in section 1101(7) of the Right to Financial Privacy Act of 1978
(12 U.S.C. 3401 et. seq.)
(RFPA), any exempt records for a legitimate depository institution
supervisory or regulatory purpose. The Director, or designee, may in
his or her discretion and for good cause, disclose exempt records,
including customer financial records, to certain other federal agencies
as referenced in section 1113 of the RFPA for the purposes and to the
extent permitted therein, or to any foreign bank regulatory or
supervisory authority as provided, and to the extent permitted, by
section 206 of the Federal Deposit Insurance Corporation Improvement
Act of 1991 (12 U.S.C. 3109).
Finally, the Director, or designee, may in his or her discretion and
for good cause, disclose reports of examination or other confidential
supervisory information concerning any depository institution or other
entity examined by the Corporation under authority of Federal law to:
any other Federal or State agency or authority with supervisory or
regulatory authority over the depository institution or other entity;
any officer, director, or receiver of such depository institution or
entity; and any other person that the Corporation determines to be
appropriate.
(4) Disclosure to prosecuting or investigatory agencies or
authorities. (i) Reports of Apparent Crime pertaining to
suspected violations of law, which may contain customer financial
records, may be disclosed to federal or state prosecuting or
investigatory authorities without giving notice to the customer, as
permitted in the relevant exceptions of the RFPA.
(ii) The Director of the Corporation's Division having primary
authority over the exempt records, or designee, may disclose to the
proper federal or state prosecuting or investigatory authorities, or to
any authorized officer or employee of such authority, copies of exempt
records pertaining to irregularities discovered in depository
institutions which are believed to constitute violations of any federal
or state civil or criminal law, or unsafe or unsound banking practices,
provided, that customer financial records may be disclosed without
giving notice to the customer, only as permitted by the relevant
exceptions of the RFPA. Unless such disclosure is initiated by the
FDIC, customer financial records shall be disclosed only in response to
a written request which:
(A) Is signed by an authorized official of the agency making the
request;
(B) Identifies the record or records to which access is
requested; and
(C) Gives the reasons for the request.
(iii) When notice to the customer is required to be given under
the RFPA, the Director of the Corporation's Division having primary
authority over the exempt records, or designee, may disclose customer
financial records to any federal or state prosecuting or investigatory
agency or authority, provided, that:
(A) The General Counsel, or designee, has determined that
disclosure is authorized or required by law; or
(B) Disclosure is pursuant to a written request that indicates
the information is relevant to a legitimate law enforcement inquiry
within the jurisdiction of the requesting agency and:
{{4-30-98 p.2177}}
(1) The Director of the Corporation's Division having
primary authority over the exempt records, or designee, certifies
pursuant to section 1112(a) 3
of the RFPA that the records are believed relevant to a legitimate law
enforcement inquiry within the jurisdiction of the receiving agency;
and
(2) A copy of such certification and the notice
required by section 1112(b) 4
of the RFPA is sent within fourteen days of the disclosure to the
customer whose records are
disclosed. 5
(5) Disclosure to servicers and serviced
institutions. The Director of the Corporation's Division having
primary authority over the exempt records, or designee, may disclose
copies of any exempt record related to a bank data center, a depository
institution service corporation or any other data center that provides
data processing or related services to an insured institution
(hereinafter referred to as "data center") to:
(i) The examined data center;
(ii) Any insured institution that receives data processing or
related services from the examined data center;
(iii) Any state agency or authority which exercises general
supervision over an institution serviced by the examined data center;
and
(iv) Any federal financial institution supervisory agency which
exercises general supervision over an institution serviced by the
examined data center. The federal supervisory agency may disclose any
such examination report received from the Corporation to an insured
institution over which it exercises general supervision and which is
serviced by the examined data center.
(6) Disclosure to third parties. (i) Except as
otherwise provided in paragraphs (c)(1) through (5) of this section,
the Director of the Corporation's Division having primary authority
over the exempt records, or designee, may in his or her discretion and
for good cause, disclose copies of any exempt records to any third
party where requested to do so in writing. Any such written request
shall:
(A) Specify, with reasonable particularity, the record or records
to which access is requested; and
(B) Give the reasons for the request.
(ii) Either prior to or at the time of any disclosure, the
Director or designee shall require such terms and conditions as he
deems necessary to protect the confidential nature of the record, the
financial integrity of any depository institution to which the record
relates, and the legitimate privacy interests of any individual named
in such records.
(7) Authorization for disclosure by depository institutions
or other third parties. (i) The Director of the Corporation's
Division having primary authority over the exempt records, or designee,
may, in his or her discretion and for good cause, authorize any
director, officer, employee, or agent of a depository institution to
disclose copies of any exempt record in his custody to anyone who is
not a director, officer or employee of the depository institution. Such
authorization must be in response to a written request from the party
seeking the record or from management of the depository institution to
which the report or record pertains. Any such request shall specify,
with reasonable particularity, the
{{4-30-98 p.2178}}record sought, the party's
interest therein, and the party's relationship to the depository
institution to which the record relates.
(ii) The Director of the Corporation's Division having primary
authority over the exempt records, or designee, may, in his or her
discretion and for good cause, authorize any third party, including a
federal or state agency, that has received a copy of a Corporation
exempt record, to disclose such exempt record to another party or
agency. Such authorization must be in response to a written request
from the party that has custody of the copy of the exempt record. Any
such request shall specify the record sought to be disclosed and the
reasons why disclosure is necessary.
(iii) Any subsidiary depository institution of a bank holding
company or a savings and loan holding company may reproduce and furnish
a copy of any report of examination of the subsidiary depository
institution to the parent holding company without prior approval of the
Director of the Division having primary authority over the exempt
records and any depository institution may reproduce and furnish a copy
of any report of examination of the disclosing depository institution
to a majority shareholder if the following conditions are met:
(A) The parent holding company or shareholder owns in excess of
50% of the voting stock of the depository institution or subsidiary
depository institution;
(B) The board of directors of the depository institution or
subsidiary depository institution at least annually by resolution
authorizes the reproduction and furnishing of reports of examination
(the resolution shall specifically name the shareholder or parent
holding company, state the address to which the reports are to be sent,
and indicate that all reports furnished pursuant to the resolution
remain the property of the Federal Deposit Insurance Corporation and
are not to be disclosed or made public in any manner without the prior
written approval of the Director of the Corporation's Division having
primary authority over the exempt records as provided in paragraph (b)
of this section;
(C) A copy of the resolution authorizing disclosure of the
reports is sent to the shareholder or parent holding company; and
(D) The minutes of the board of directors of the depository
institution or subsidiary depository institution for the meeting
immediately following disclosure of a report state:
(1) That disclosure was made;
(2) The date of the report which was disclosed;
(3) To whom the report was sent; and
(4) The date the report was disclosed.
(iv) With respect to any disclosure that is authorized under this
paragraph (b)(7), the Director of the Corporation's Division having
primary authority over the exempt records, or designee, shall only
permit disclosure of records upon determining that good cause exists.
If exempt record contains information derived from depositiory
institution customer financial records, disclosure is to be authorized
only upon the condition that the requesting party and the party
releasing the records comply with any applicable provision of the RFPA.
Before authorizing the disclosure, the Director (or designee) may
require that both the party having custody of a copy of a Corporation
exempt record and the party seeking access to the record agree to such
limitations as the Director (or designee) deems necessary to protect
the confidential nature of the record, the financial integrity of any
depository institution to which the record relates and the legitimate
privacy interests of any persons named in such record.
(8) Disclosure by General Counsel. (i) The
Corporation's General Counsel, or designee, may disclose or authorize
the disclosure of any exempt record in response to a valid judicial
subpoena, court order, or other legal process, and authorize any
current or former officer, director, employee, agent of the
Corporation, or third party, to appear and testify regarding an exempt
record or any information obtained in the performance of such person's
official duties, at any administrative or judicial hearing or
proceeding where such person has been served with a valid subpoena,
court order, or other legal process requiring him or her to testify.
The General Counsel shall consider the relevancy of such
exempt
{{10-31-08 p.2179}}records or testimony in
litigation, and the interests of justice, in determining whether to
disclose such records or testimony. Third parties seeking disclosure of
exempt records or testimony in litigation to which the FDIC is not a
party shall submit a request for discretionary disclosure directly to
the General Counsel. 6
Such request shall specify the information sought with reasonable
particularity and shall be accompanied by a statement with supporting
documentation showing in detail the relevance of such exempt
information to the litigation, justifying good cause for disclosure,
and a commitment to be bound by a protective order. Failure to exhaust
such administrative request prior to service of a subpoena or other
legal process may, in the General Counsel's discretion, serve as a
basis for objection to such subpoena or legal process. Customer
financial records may not be disclosed to any federal agency that is
not a federal financial supervisory agency pursuant to this paragraph
unless notice to the customer and certification as required by the RFPA
have been given except where disclosure is subject to the relevant
exceptions set forth in the RFPA.
(ii) The General Counsel, or designee, may in his or her
discretion and for good cause, disclose or authorize disclosure of any
exempt record or testimony by a current or former officer, director,
employee, agent of the Corporation, or third party, sought in
connection with any civil or criminal hearing, proceeding or
investigation without the service of a judicial subpoena, or other
legal process requiring such disclosure or testimony, if he or she
determines that the records or testimony are relevant to the hearing,
proceeding or investigation and that disclosure is in the best
interests of justice and not otherwise prohibited by Federal statute.
Customer financial records shall not be disclosed to any federal agency
pursuant to this paragraph that is not a federal financial supervisory
agency, unless the records are sought under the Federal Rules of Civil
Procedure (28 U.S.C. appendix) or the Federal Rules of Criminal
Procedure (18 U.S.C. appendix) or comparable rules of other courts and
in connection with litigation to which the receiving federal agency,
employee, officer, director, or agent, and the customer are parties, or
disclosure is otherwise subject to the relevant exceptions in the RFPA.
Where the General Counsel or designee authorizes a current or former
officer, director, employee or agent of the Corporation to testify or
disclose exempt records pursuant to this paragraph (b)(8), he or she
may, in his or her discretion, limit the authorization to so much of
the record or testimony as is relevant to the issues at such hearing,
proceeding or investigation, and he or she shall give authorization
only upon fulfillment of such conditions as he or she deems necessary
and practicable to protect the confidential nature of such records or
testimony.
(9) Authorization for disclosure by the Chairman of the
Corporation's Board of Directors. Except where expressly
prohibited by law, the Chairman of the Corporation's Board of Directors
may in his or her discretion, authorize the disclosure of any
Corporation records. Except where disclosure is required by law, the
Chairman may direct any current or former officer, director, employee
or agent of the Corporation to refuse to disclose any record if the
Chairman determines, in his or her discretion, that refusal to permit
such disclosure is in the public interests.
(10) Limitations on disclosure. All steps practicable
shall be taken to protect the confidentiality of exempt records and
information. Any disclosure permitted by this paragraph (b) of this
section is discretionary and nothing in paragraph (b) of this section
shall be construed as requiring the disclosure of information. Further,
nothing in this paragraph (b) of this section shall be construed as
restricting, in any manner, the authority of the Board of Directors,
the Chairman of the Board of Directors, the Director of the
Corporation's Division having primary authority over the exempt
records, the Corporation's General Counsel, or their designees, or any
other Corporation Division or Office head, in their discretion and in
light of the facts and circumstances attendant in any given case,
require conditions upon and to limit the form, manner, and extent of
any disclosure
{{10-31-08 p.2180}}permitted by this section.
Wherever practicable, disclosure of exempt records shall be made
pursuant to a protective order and redacted to exclude all irrelevant
or non-responsive exempt information.
[Codified to 12 C.F.R. § 309.6]
[Section 309.6 amended at 63 Fed. Reg. 16408, April 3,
1998, effective May 4, 1998; 67 Fed. Reg. 71071, November 29, 2002; 73
Fed. Reg. 2146, January 14, 2008; 73 Fed. Reg. 55434, Septe,ber 25,
2008]
§ 309.7 Service of process.
(a) Service. Any subpoena or other legal process to
obtain information maintained by the FDIC shall be duly issued by a
court having jurisdiction over the FDIC, and served upon either the
Executive Secretary (or designee), FDIC, 550 17th Street, N.W.,
Washington, D.C. 20429 or the Regional Director or Regional Manager of
the FDIC region where the legal action from which the subpoena or
process was issued is pending. A list of the
FDIC's regional offices is available from
the Office of Public Affairs, FDIC, 550 17th Street, N.W., Washington,
D.C. 20429 (telephone 202-898-6996). Where the FDIC is named as a
party, service of process shall be made pursuant to the Federal Rules
of Civil Procedure, and upon the Executive Secretary (or designee),
FDIC, 550 17th Street N.W., Washington, D.C. 20429, or upon the agent
designated to receive service of process in the state, territory, or
jurisdiction in which any insured depository institution is located.
Identification of the designated agent in the state, territory, or
jurisdiction may be obtained from the Executive Secretary or from the
Office of the General Counsel, FDIC, 550 17th Street N.W., Washington,
D.C. 20429. The Executive Secretary (or designee), Regional Director or
designated agent shall immediately forward any subpoena, court order or
legal process to the General Counsel. The Corporation may require the
payment of fees, in accordance with the fee schedule referred to in
§ 309.5(c)(3), prior to the release of any records requested pursuant
to any subpoena or other legal process.
(b) Notification by person served. If any current or
former officer, director, employee or agent of the Corporation, or any
other person who has custody of records belonging to the FDIC, is
served with a subpoena, court order, or other process requiring that
person's attendance as a witness concerning any matter related to
official duties, or the production of any exempt record of the
Corporation, such person shall promptly advise the General Counsel of
such service, of the testimony and records described in the subpoena,
and of all relevant facts which may be of assistance to the General
Counsel in determining whether the individual in question should be
authorized to testify or the records should be produced. Such person
should also inform the court or tribunal which issued the process and
the attorney for the party upon whose application the process was
issued, if known, of the substance of this section.
(c) Appearance by person served. Absent the written
authorization of the Corporation's General Counsel, or designee, to
disclose the requested information, any current or former officer,
director, employee, or agent of the Corporation, and any other person
having custody of records of the Corporation, who is required to
respond to a subpoena or other legal process, shall attend at the time
and place therein specified and respectfully decline to produce any
such record or give any testimony with respect thereto, basing such
refusal on this section.
[Codified to 12 C.F.R. § 309.7]
[Section 309.7 amended at 67 Fed. Reg. 71071, November 29, 2002]
[The page following this is 2187.]
1Classification of a record as exempt from disclosure under the
provisions of this paragraph (g) shall not be construed as authority to
withhold the record if it is otherwise subject to disclosure under the
Privacy Act of 1974 (5 U.S.C.
552a) or other federal statute, any applicable regulation of
FDIC or any other federal agency having jurisdiction thereof, or any
directive or order of any court of competent jurisdiction. Go Back to Text
2 The procedures for disclosing records under the Privacy Act
are separately set forth in 12 CFR part 310. Go Back to Text
3 The form of certification generally is as follows.
Additional information may be added:
Pursuant to section 1112(a) of the Right to Financial Privacy Act
of 1978 (12 U.S.C. 3412),
I, _______ [name and appropriate title] hereby certify that
the financial records described below were transferred to (agency or
department) in the belief that they were relevant to a legitimate law
enforcement inquiry, within the jurisdiction of the receiving agency. Go Back to Text
4 The form of notice generally is as follows. Additional
information may be added:
Dear Mr./Mrs. _______ :
Copies of, or information contained in, your financial records
lawfully in the possession of the Federal Deposit Insurance Corporation
have been furnished to (agency or department) pursuant to the Right to
Financial Privacy Act of 1978 for the following
purpose: _______ . If you believe that this transfer has not
been made to further a legitimate law enforcement inquiry, you may have
legal rights under the Right to Financial Privacy Act of 1978 or the
Privacy Act of 1974. Go Back to Text
5 Whenever the Corporation is subject to a court-ordered delay
of the customer notice, the notice shall be sent immediately upon the
expiration of the court-ordered delay. Go Back to Text
6This administrative requirement does not apply to subpoenas,
court orders or other legal process issued for records of depository
institutions held by the FDIC as Receiver or Conservator. Subpoenas,
court orders or other legal process issued for such records will be
processed in accordance with State and Federal law, regulations, rules
and privileges applicable to FDIC as Receiver or Conservator. Go Back to Text
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